Will Hampton defend ex-police chief, former major in defamation suit?

City has a policy to represent employees in civil suits, though there can be exceptions

HAMPTON — The City of Hampton has a clear policy to provide legal protections to city employees who get sued for their actions on the job.

Then again, there can be exceptions to such coverage if the employee in question is acting outside the "legitimate performance of assigned duties."

One legal expert says that in the case of a former police chief and another former high ranking officer being sued for defamation by a former police lieutenant, Hampton must weigh the city's policy against the suit's allegations — and determine whether the former employees should be defended.

"Those are questions that are going to have to be answered," said Stanley Barr, an attorney from Kaufman & Canoles who often represents cities and counties in civil litigation. "The issue is going to be whether or not the allegations fall within the definition of covered events arising out of official duty."

A former Hampton police lieutenant, James R. Crotts, is suing former Police Chief Charles R. Jordan Jr. and former Major Edward Lattimore III in Hampton Circuit Court for $3.85 million — accusing them of trying to make him the "fall guy" in an undercover cigarette operation run by the department.

Barr, who is currently representing the city and school system in two unrelated cases, said that because the city isn't named as a defendant in Crotts' lawsuit — and because Jordan and Lattimore are being sued in their individual capacities rather than their official ones — there is no automatic trigger for the city to be involved.

That means, Barr said, that determining whether the employees are protected by the city's policy will be key.

Circumstances

By its very nature, he said, a defamation claim is an accusation that the defendants acted "willfully" to defame someone. "Defamation is not negligence," Barr said. "It requires an intent to say things that are defamatory in holding someone up to public ridicule."

Then again, he said, the city might determine that such statements weren't made or might not be defamatory. "So the city is going to have to look at it and give it consideration," Barr said. "They'll have to look at the policy and decide whether to offer a defense."

Because of the costs of civil litigation, who will pay for Jordan's and Lattimore's lawyers in the case could become a significant question if the suit goes forward.

Hiring outside attorneys to defend public employees in lawsuits can easily reach tens of thousands of dollars, even for cases that don't make it to trial. Depending on a case's complexity and how far along it gets, such fees can even run into the hundreds of thousands of dollars — not counting a settlement or verdict.

City Attorney Cynthia Hudson has so far declined to say whether the city would be providing city-paid lawyers for Jordan and Lattimore.

According to a city policy: "City employees against whom a civil action has been initiated because of an act or event occurring while in the legitimate performance of assigned duties and responsibilities or ensuing from the employee's official position with the City of Hampton shall be provided advice, assistance, and legal defense at City of Hampton expense."

Likewise, a City Council resolution says city employees are protected in civil suits resulting from the "scope of their official duties" — with the city promising to bear the costs of "defending court actions" and "the settlement of claims and the satisfaction of judgments."

The resolution, passed in March 2007, says the city will provide legal protections through the city's self-insurance program and additional insurance mechanisms.

It's not an open-ended commitment, however. There can be exceptions to such coverage, for example, if the claim arises "from criminal acts, willful misconduct, or intentional torts," according to the council resolution.

Both the resolution and the policy — including any limitations to the legal protections — apply to both past and present employees, Hudson said.

Neither Jordan nor Lattimore work for the city now. Jordan, who had 34 years with the city and eight years as its police chief, resigned in mid-November, a month after being put on paid leave during an internal investigation into the cigarette case. Lattimore stepped aside on Jan. 1 after 30 years with the city.

Given the circumstances of Jordan's departure, a request for legal coverage could become a bit awkward — even if the city ultimately ends up defending him.

That's because Jordan took a parting shot at both Hudson and City Manager Mary Bunting on his way out the door. In a letter to residents announcing his resignation, Jordan hinted that the City Attorney's Office and City Manager's Office knew more about the cigarette operation than they were letting on.